### In the 

# United States Court of Appeals For the Seventh Circuit

____________________
Nos. 20-2835 & 20-2844

D EMOCRATIC N ATIONAL C OMMITTEE , et al

., Plaintiffs-Appellees

,

v.

M ARGE B OSTELMANN , S ECRETARY OF THE W ISCONSIN E LECTIONS C OMMISSION , et al

., Defendants

, and

W ISCONSIN S TATE L EGISLATURE , R EPUBLICAN N ATIONAL C OMMITTEE , and R EPUBLICAN P ARTY OF W ISCONSIN , Intervening Defendants-Appellants

.

____________________ Appeals from the United States District Court for the Western District of Wisconsin. Nos. 20-cv-249-wmc, et al . — William M. Conley

, Judge

.

____________________

S UBMITTED O CTOBER 6, 2020

— D ECIDED O CTOBER 8, 2020

____________________

Before E ASTERBROOK, R OVNER, and S T

. E VE , Circuit Judges

. P ER C URIAM . On September 29, 2020, we issued an order denying the motions for a stay in these appeals, because we2 Nos. 20-2835 & 20-2844

concluded that Wisconsin’s legislative branch has not been authorized to represent the state’s interest in defending its statutes. On October 2, in respon se to a request for reconsideration, we certi fi ed to the Supreme Court of Wisconsin the question “whether, under Wis. Stat. §803.09(2m), the StateLegislature has the authority to represent the State of Wisconsin’s interest in the validit y of state laws.” That court accepted the certi fi cation and replied thatthe State Legislature indeed has that authority. Democratic National Commi tt ee v. Bostelmann , 2020 WI 80 (Oct. 6, 2020). In light of that conclusion, we grant the petition fo r reconsideration and now address the Legislature’s motion on the merits. (The other intervenors have not sought reconsideration.) As we explained last week, a district judge held that many provisions in the state’s elections code may be used during the SARS-CoV-2 pandemic but that some deadlines must be extended, additional online options must be added, and two smaller changes made. 2020 U.S. Dist. L EXIS 172330 (W.D. Wis. Sept. 21, 2020). In particular, the court extended the deadline for online and mail-in registration from October 14 (see Wis. Stat. §6.28(1)) to October 21, 2020; enjoined forone week (October 22 to October 29) enforcement of the requirement that the clerk mail all ballots, but only for those voters who timely requested an absentee ballot but did not receive one, and authorized online delivery during this time; and extended the deadline for the receipt of mailed ballots from November 3 (Election Day) to November 9, provided that the ballots are postmarked on or before November 3. Two other provisions of the injunction (2020 U.S. Dist. L EXIS 172330 at *98) need not be described.Nos. 20-2835 & 20-2844 3

The State Legislature o ff ers two principal arguments in support of a stay: fi rst, that a federal court should not change the rules so close to an election ; second, that political rather than judicial o ffi cials are entitled to decide when a pandemic justi fi es changes to rules that are otherwise valid. See Luft v. Evers , 963 F.3d 665 (7th Cir. 2020) (sustaining Wisconsin’s rules after reviewing the elec tions code as a whole). We agree with both of those argum ents, which means that a stay is appropriate under the factors discussed in Nken v. Holder

, 556 U.S. 418, 434 (2009).For many years the Supreme Court has insisted that federal courts not change electoral rules close to an election date. One recent instance came in an earlier phase of this case. After the district judge directed Wisconsin to change some of its rules close to th e April 2020 election, the Supreme Court granted a stay (to the extent one had been requested) and observed that the change had come too late. Republican National Commi tt ee v. Democratic National Commi tt ee , 140 S. Ct. 1205, 1207 (2020). One of the decisions cited in that opinion is another from Wisconsin: Frank v. Walker , 574 U.S. 929 (2014). In Frank this court had permi tt ed Wisconsin to put its photo-ID law into e ff ect, staying a districtcourt’s injunction. But the Supreme Court deemed that change (two months before the election) too late, even though it came at the state’s behest. ( Frank did not give reasons, but Republican National Commi tt ee treated Frank as an example of a change made too late.) Here the district court entered its injunction on September 21, only six weeks before the election and less than four weeks before October 14, the fi rst of the deadlines that the district court altered. Ifthe orders of last April, and
in Frank , were too late, so is the district court’s September4 Nos. 20-2835 & 20-2844

order in this case. See also Purcell v. Gonzalez , 549 U.S. 1 (2006). The Justices have deprecated but not forbidden all change close to an election. A last-minute event may require a last-minute reaction. But it is not possible to describeCOVID-19 as a last-minute event. The World Health Organization declared a pandemic seve n months ago, the State ofWisconsin closed many businesses and required social distancing last March, and the state has conducted two elections (April and August) during the pandemic. If the judge had issued an order in May based on April’s experience, it could not be called untimely. By waiting until September, however, the district court acted too close to the election. The district judge also assu med that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the Supreme Court’s recent stay of another injunction issued close to the upcoming election. Andino v. Middleton , No. 20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The Supreme Court has held that th e design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause

, 139 S. Ct. 2484 (2019); Burdick v. Takushi , 504 U.S. 428 (1992). Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is di ffi cult to justify when the voters have had a long time to cast ballots while preserving social distancing. The pandemic has had consequences (and appropriate governmental responses) that change with time, but the fundamental proposition that social distancing is necessary has not changed sinc e March. The district court did not fi nd that any person who wants to avoid voting inNos. 20-2835 & 20-2844 5

person on Election Day would be unable to cast a ballot in Wisconsin by planning ahead and taking advantage of theopportunities allowed by state law. The problem that concerned the district judge, rather, was the di ffi culty that could be encountered by voters who do not plan ahead and wait until the last day that state law allows for certain steps. Yet, as the Supreme Court observed last April in this very case, voters who wait until the last minute face problems with or without a pandemic.The Court has consistently stayed orders by which federal judges have used COVID-19 as a reason to displace the decisions of the policymaking branches of government. Ithas stayed judicial orders about elections, prison management, and the closure of businesses. We have already mentioned Andino and Republican National Commi tt ee . See also Clarno v. People Not Politicians Oregon , No. 20A21 (U.S. Aug. 11, 2020) (staying an injunction that had altered a state’s signature and deadline requirements for placing initiatives on the ballot during the pandemic); Merrill v. People First of Alabama , No. 19A1063 (U.S. July 2, 2020) (staying an injunction that had suspended some state anti-fraud rules for absentee voting during the pandemic); Barnes v. Ahlman , 140 S. Ct.2620 (2020) (staying an order that overrode a prison warden’s decision about how to cope with the pandemic); Li tt le v. Reclaim Idaho , 140 S. Ct. 2616 (2020) (sta ying an injunctionthat changed the rules for ballot initiatives during the pandemic); South Bay United Pentecostal Church v. Newsom , 140 S. Ct. 1613 (2020) (declining to suspend state rules limiting public gatherings during the pandemic). Deciding how best to cope with di ffi culties caused by disease is principally a task fo r the elected branches of gov-6 Nos. 20-2835 & 20-2844

ernment. This is one implication of Jacobson v. Massachuse tt s , 197 U.S. 11 (1905), and has been central to our own decisionsthat have addressed requests for the Judicial Branch to supersede political o ffi cials’ choices about how to deal with the pandemic. See, e.g., Tully v. Okeson , No. 20-2605 (7th Cir. Oct. 6, 2020) (rejecting a contention that the Constitution entitles everyone to vote by mail during a pandemic); Illinois Republican Party v. Pri tz ker, No. 20-2175 (7th Cir. Sept. 3, 2020) (rejecting a constitutional challeng e to limits on the size of political gatherings during the pandemic); Peterson v. Barr, 965 F.3d 549 (7th Cir. 2020) (reversing an injunction that had altered procedures for executions during the pandemic); Morgan v. White , 964 F.3d 649 (7th Cir. 2020) (social distancing during a pandemic does not re quire, as a constitutional

ma tt er, a change in the rules for qualifying referenda for the ballot); Elim Romanian Pentecostal Church v. Pri tz ker, 962 F.3d 341 (7th Cir. 2020) (rejecting a constitutional challenge tolimits on the size of religious gatherings during the pandemic). Cf. Mays v. Dart , No. 20-1792 (7th Cir. Sept. 8, 2020) (reversing, for legal errors, an injunction that speci fi ed how prisons must be managed during the pandemic). The injunction issued by the di strict court is stayed pending fi nal disposition of these appeals.Nos. 20-2835 & 20-2844 7

R OVNER, Circuit Judge , dissenting. In the United States of America, a beacon of liberty fo unded on the right of the people to rule themselves, no citi zen should have to choose between her health and her right to vote. An election system designed for in-person voting, coupled with an uncontrolled pandemic that is unprecedente d in our lifetimes, confronts Wisconsin voters with that very choice. In the April 2020 election, Wisconsin voters sought overwhelmingly to protect themselves by voting absent ee. Yet at least 100,000 of them, despite timely requests, did not receive their ballots in time to return them by election day, as the Wisconsin election code requires. Only as a result of ju dicial intervention in the April 2020 election were some 80,000 absentee ballots, their return delayed by an overwhelmed election apparatus and Postal Service, rescued from the trash bin. Thousands of additional voters who never received thei r ballots were forced to stand in line for hours on election day waiting to vote in person, risking their well-being by doing so.For purposes of the upcoming November election, the district court ordered a limited, re asonable set of modifications to Wisconsin’s election rules designed to address the very problems that manifested in the April election and to preserve the precious right of each Wisconsin citizen to vote. Its two most important provisions are comparable to those this verycourt sustained six months ago. The Wisconsin Election Commission, whose members are appointed by the Legislature and the Governor and are char ged with administering the State’s elections, has acceded to that injunction. It is not here complaining of any undue burden imposed by the district court’s decision or any risk ofvoter confusion. Only the Wisconsin Legislature, which has chosen to make no accommodations in the election rules to account for the burdens created8 Nos. 20-2835 & 20-2844

by the pandemic, seeks a stay of the injunction in furtherance of its own power. Today, by granting that stay, the court adopts a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundament al right to vote. It does so on two grounds: (1) the Supreme Court’s Purcell doctrine, as exemplified by the Court’s recent shadow-docket rulings, in the majority’s view all but forbid s alterations to election rulesin the run-up to an election; and (2) in times of pandemic, revisions to election rules are the province of elected state officials rather than the judiciary. With respect, I am not convinced that either rationale ju stifies a stay of the district court’s careful, thorough, and we ll-grounded injunction. At a time when judicial intervention is most needed to protect the fundamental right of Wisconsin citizens to choose their elected representatives, the court declares itself powerless to do anything. This is inconsistent both with the stated rationale of Purcell and with the Anderson-Burdick framework, whichrecognizes that courts can and must intervene to address unacceptable burdens on the funda mental right to vote. The inevitable result of the court’s de cision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it. This is a travesty.

On the facts of the case, I see no deviation from Purcell . In all of two sentences, Purcell articulated not a rule but a caution: take care with last-minut e changes to a state’s electionrules, lest voters become confused and discouraged from voting. Purcell v. Gonzalez , 549 U.S. 1, 4–5, 127 S. Ct. 5, 7 (2006)Nos. 20-2835 & 20-2844 9

(per curiam). 1 In a series of stay rulin gs on its shadow docketsince that decision, the Supreme Court has evinced a pronounced skepticism of judicial intervention in the weeks prior to an election, e.g. Andino v. Middleton , — S. Ct. —, 2020 WL 5887393 (U.S. Oct. 5, 2020), but has put little meat on the bones of what has become known as the Purcell doctrine. See Nicholas Stephanopoulos, Freeing Purcell from the Shadows , Election Law Blog (Sept. 27, 2020) (hereinafter, “ Freeing Purcell ”) (“[d]espite all of this activity, the Purcell principle remains remarkably opaque”) 2 . Perhaps we can say at this point that Purcell and its progeny establish a presumption against judicial intervention close in time to an election. See id. (“This is the reading most consistent with Purcell ’s actual language.”). But how near? As to what typ es of changes? Overcome by what showing? These and ot her questions remain unanswered. The Supreme Court’s stay decision in this case regarding the April 2020 election did little to clear things up. This court had denied a stay as to two changes the district court ordered for purposes of that spring election: extending the deadline for requesting an absentee ballot, and extending the deadline for receipt of completed absentee ballots. Dem. Nat’l Com. v. Bostelmann , 2020 WL 3619499, at *1 (7th Cir. April 3, 2020). TheWisconsin Legislature appealed only the ballot-receipt deadline. Although the Court had critical things to say about the

1 “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Purcell

, 549 U.S. at 4–5, 127 S. Ct. at 7.

2 Available at https://electionlawblog.org/?p=115834.10 Nos. 20-2835 & 20-2844

last-minute change in rules ordered by the district court’s injunction (in part because the district court had ordered relief beyond what the plaintiffs them selves had requested), it then proceeded to impose one of its own, ordering that absentee ballots must either be delivered or postmarked on or before election day in order to be counted. Repub. Nat’l Com. v. Dem. Nat’l Com. , 140 S. Ct. 1205, 1207, 1208 (2020). The Court was also at pains to emphasize that it was reserving judgment as to “whether other reforms or mo difications in election procedures in light of COVID-19 are appropriate.” Id. at 1208. Apart from that, the Supreme Court’s pa ttern of staying similar sorts of injunctions in recent months is long on signaling but shorton concrete principles that lower courts can apply to the specific facts before them. Until the Supreme Court give s us more guidance than Purcell and an occasional sentence or two in its stay rulings have provided, all that lower courts can do—and, I submit, must do—is carefully evaluate emergent circumstances that threaten to interfere with the ri ght to vote and conscientiously evaluate all of the factors that bear on the propriety of judicial intervention to address those ci rcumstances, including in particular the possibility of voter confusion. A variety of factors should inform a court’s decision whether or not to modify election rules. See Freeing Purcell . On balance, these factors support rather than undermine the district court’s decision here.

The first consideration is wh ether the proposed modifications might confuse voters. That risk is minimal here. Only two of the five modifications th at Judge Conley ordered alter what is expected of voters: th e extension of the deadline to register online or by mail, an d the extension of the deadlineNos. 20-2835 & 20-2844 11

for receipt of absentee ballots. Both of these modifications redound to the benefit of voters, and certainly do not lay a trap for the unwary. We upheld ( i.e. , denied a stay as to) comparable changes for the April election, and the Supreme Court modified the latter only to the extent of requiring that an absentee ballot be delivered or postmarked on or before election day. 3 Neither we nor our superiors would have done so had there been a substantial risk of confusing voters. The other three changes are directed to election officials and what they must do. By their nature , these changes will not impact voter decisions. A second consideration is whether the changes to election rules will burden election officials and increase the odds that they make mistakes. Judge Conley gave careful attention towhether state election officials would have the time and ability to implement the changes he ordered. The Wisconsin Election Commission signaled a preparedness and ability to comply with these modifications (m ore on these points below), and the State Executive is not here to contend otherwise.

We must consider, third, the likelihood that voter disenfranchisement will ensue from the changes Judge Conley ordered. The answer here is straightforward: it will not. On thecontrary, his directives are aimed at preventing disenfranchisement. And as detailed below, the results of the April

3 In its April decision, this court denied a stay as to an extension of the deadline to request an absentee ballot and the deadline for receipt of a completed absentee ballot. Bostelmann , 2020 WL 3619499, at *1. The district court had also ordered an extension of the deadline to register online for the April election, see Dem. Nat’l Com. v. Bostelmann , 447 F. Supp. 3d 757,765–67 (W.D. Wis. Mar. 20, 2020), but a stay was not sought as to that extension.12 Nos. 20-2835 & 20-2844

election in Wisconsin demonstrat e that only in the absence of judicial intervention will voters be disenfranchised. Fourth, there has been no lack of diligence on the part of the plaintiffs in seeking relief. They sought relief in advanceof the April election, as the pandemic was heating up, succeeded in part as to that elec tion, and promptly renewed their pursuit of relief in the immediate aftermath of that election. After they defeated the Legislat ure’s attempt to dismiss their claims, see Dem. Nat’l Com. v. Bostelmann , 2020 WL 3077047 (W.D. Wis. June 10, 2020), they proceeded with discovery, presented their case at an evidentiary hearing in August, and obtained a favorable ruling in September. There has been no dallying on the plaintiffs’ part. For its part, the district judge responded with both alacrity an d attention to detail. But according to this court, which has retroactively announced a May deadline for any changes to election rules, it was all for naught—their work was over before it began. Fifth and finally, although the election is drawing close, the district judge issued his in junction six weeks prior to the election, leaving ample time for Wisconsin election officials to alter election practices as ordered and communicate the changes to the public, and for hi s judgment to be reviewed by this court and, if necessary, by the Supreme Court. 4 This is a

4 As the Gear plaintiffs point out, other circ uit courts have upheld injunctions modifying state election procedur es in the immediate run-up to elections when the courts deemed the modifications necessary to prevent voter disenfranchisement. E.g.

, League of Women Voters of the U.S. v. Newby

, 838 F.3d 1, 12–15 (D.C. Cir. 2016) (2-1 decision) (six weeks before election); Obama for Am. v. Husted, 697 F.3d 423, 436–37 (6th Cir. 2012) (one month before election); U.S. Student Ass’n Fdn. v. Land, 546 F.3d 373, 387–89 (6th Cir. 2008) (2-1 decision) (six days before election).Nos. 20-2835 & 20-2844 13

far cry from April, when the court’s injunction was issued just eighteen days prior to the elec tion and was modified to grant additional relief just five days prior to the election. The Covid19 pandemic is no longer new but neither is it a static phenomenon; infection rates have ebbed and surged in multiple waves around the country and it is only now that Wisconsin is facing crisis-level conditio ns. I suppose that the district court could have issued a pr eliminary injunction in Maybased on the experience with the April election, as my colleagues suggest, but the defendants no doubt would have argued that it was premature to deem modifications to the election code warranted so far in advance of the election, 5 and there is a fair chance that this court might have agreed with them. Wisconsin infection rates in early May were less than one quarter of what they are now. Nothing in Purcell or its progeny forecloses modifications of the kind the district courtordered in the worsening circumstances that confront Wisconsin as the election draws nigh. Otherwise, courts wouldnever be able to order relief addressing late-developing circumstances that threaten interference with the right to vote. 6

5 In fact, the defendants did argue precisely that in moving to dismiss the DNC’s complaint shortly after the April election took place. See Dem. Nat’l Com. v. Bostelmann , 2020 WL 3077047 (W.D. Wis. June 9, 2020).

6 Professor Stephanopoulos cites the Bipartisan Campaign Reform Act’sspecial restrictions on campaign ads imposed within 60 days of an election, and the Military and Overseas Voter Empowerment Act’s requirement that absentee ballots be sent to certain voters at least 45 days prior to an election, as possible guideposts for determining when the eleventh hour has arrived for judicial in tervention into an election. Freeing Purcell

. Obviously, we are past both refere nce points here. But Stephanopoulos himself argues that this sort of de adline (which, of course, the Supreme14 Nos. 20-2835 & 20-2844

The court’s second rationale for granting a stay—that “the design of adjustments during a pandemic” is a task for elected officials rather than the ju diciary—announces an ad hoc carve-out from the Anderson-Burdickframework for the review of state election rules. See Anderson v. Celebrezze , 460 U.S. 780, 103 S. Ct. 1564 (1983); Burdick v. Takushi , 504 U.S. 428, 112 S. Ct. 2059 (1992). That framework does call for deference to state officials, depending upon the degree of restriction thatstate election rules impose on the right to vote: severe restrictions demand strict judi cial scrutiny, whereas modest, unexceptional restrictions enjoy a presumption of validity. Id. at 434, 112 S. Ct. at 2063–64. But what the majority proposes is total deference to state officials in the context of pandemic,with no degree of judicial scrutiny at all. That I cannot endorse. Communicable diseases can impose real and substantial obstacles to voting, and voting rules that are unobjectionable in normal conditions may become unreasonable duringa pandemic, when leaving one’s home and joining other voters at the polls carries with it a genuine risk of becoming seriously ill. Notably, the Wisconsin Election Commission, whose members are appointed by two sets of elected officials—theLegislature and the Governor—was represented in the litigation below. As I noted at the outset, the Commission has acceded to the district court’s in junction and has not sought a stay. As long as we are discussing deference to state officials, the views of the Commission, wh ich is charged with enforcing Wisconsin’s election rules, ought to count for something.

Court has yet to adopt) should not be conclusive in assessing the propriety of judicial intervention.Nos. 20-2835 & 20-2844 15

Justice Kavanaugh’s concurrence in Andino posits that a state legislature’s decision whether or not to alter voting rules in response to the Covid-19 pandemic ordinarily should notbe second-guessed by the judiciary, which lacks the legislature’s presumed expertise in ma tters of public health and is not accountable to the people. 2020 WL 5887393, at *1. But state legislatures do not possess a monopoly on matters of public health, see , e.g. , Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341 (7th Cir. 2020) (reviewing Governor’s executive order restricting size of public assemblies in light ofpublic health emergency), and when state government is divided as it is in Wisconsin, stalemates occu r. When a state proves unwilling or unable to co nfront and adapt to external forces that pose a real impedime nt to voting, it places into jeopardy the most cherished right that its citizens enjoy. (The debacle that occurred with respec t to in-person voting in Wisconsin on April 7, as I discuss be low, makes that point all too clear.) The right to vote is a right of national citizenship. Dunn v. Blumstein , 405 U.S. 330, 336, 92 S. Ct. 995, 999–1000 (1972). It is essential to the vitality of our democratic republic. E.g.

, Wesberry v. Sanders , 376 U.S. 1, 17, 84 S. Ct. 526, 535 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”). 7And no citizen of Wisconsin should be forced to ri sk his or her life or well-being in order to exercise this invalu able right. Wholesale deference

7Indeed, the irony of Justice Kavanaug h’s rationale is that unchecked deference to the state legislature as to voting procedures during a pandemic may render legislators un accountable to voters wishing to exercise their franchise.16 Nos. 20-2835 & 20-2844

to a state legislature in this co ntext essentially strips the right to vote of its constitutional protection. I submit that our foremost duty in this case is to protect the voting rights of Wisconsin citizens, which are seriously endangered, rather than discretio nary action (or inaction) by one branch of state government, in the face of a pandemic. My evaluation of the district cour t’s injunction proceeds on that understanding. A central premise of the Legislature’s request for a stay ofthe changes that Judge Conley ordered to Wisconsin’s election rules is that the ability to register and/or vote in person remains a perfectly acceptable alternative to any Wisconsin voter who is unable to register in advance of the election and to return an absentee ballot prior to election day. Were these ordinary times, I would have no difficulty agreeing with the Legislature. But what the Legislature downplays—indeed, barely acknowledges in its brie fs—is the concrete risk that a 100-year pandemic, which at present is surging in Wisconsin, poses to anyone who must brave long lines, possibly for hours, in order to register and vote in person. Historically, the vast majority of Wisconsin voters have cast their ballots in person, an d Wisconsin’s election systemhas evolved against that backdrop, with provisions for absentee voting having served as a co urtesy for the minority of voters whose work, travel, or other individual circumstances presented an obstacle to voting in person on election day. D. Ct. Op. 15, 39. Absentee ballots have often constituted less than 10 percent of ballots cast in Wisconsin, and, until this year, never more than 20 percent. D. Ct. Op. 15. Voters have also relied heavily on the Stat e’s liberal provision for sameday voting registration, with some 80 percent of all WisconsinNos. 20-2835 & 20-2844 17

voter records reflecting some use of this feature. D. Ct. Op. 39 (citing R. 532 at 58.) The Covid-19 pandemic has turned thisin-person voting paradigm on its head, as Judge Conley emphasized. Whereas, in the April 2019 election, voters requested (and were sent) a total of 167,832 absentee ballots (D. Ct. Op. 12 n.9), one year later, that total increased nearly eight-fold to 1,282,762 (D. Ct. Op. 12), with absentee ballots comprising 73.8 percent of ballots counted in the April 2020 election (D. Ct. Op. 15).The strain that the pandemic and the sudden, unprecedented preference for absentee vo ting placed on state and local officials had predictable results in the April 2020 election. Election officials scrambled to keep up with the overwhelming demand for absentee ballots. Between April 3 and April 6 (the day before the election), local officials were still in the process of mailing more than 92,000 absentee ballots, virtually all of which were sent too late for them to be filled out andmailed back by election day. D. Ct. Op. 13. Another 9,388 ballots were timely applied for but never sent. D. Ct. Op. 13. Approximately 80,000 absentee ballots were completed and postmarked on or before election day but were only received by election officials in the six days after the statutory deadline for such ballots. D. Ct. Op. 17. These ballots would not have been counted but for the district co urt’s order, sustained by this court and modified by the Su preme Court, extending the deadline. Notwithstanding the fact that nearly three-quarters of the votes cast in the April 2020 elec tion were via absentee ballots, in-person voting in that electi on presented challenges of its own. Poll workers were in short supply, as individuals who would normally have staffed the polls (many of them18 Nos. 20-2835 & 20-2844

seniors 8 ) stayed away in droves, particularly in urban locations. Milwaukee, with a population of 592,025, normally operates 180 polling sites. The city could manage to open only five on April 7. D. Ct. Op. 16. Green Bay, population 104,879, normally operates 31 polling sites. On April 7, just two were open. D. Ct. Op. 16. Lines of voters (thousands of whom had timely applied for absentee ballots but had not received them) stretched for blocks and people waited hours to vote. 9 Some were masked, many were not. Some number of voters (we do not know how many) showed up to vote in person after not receiving an absentee ballot prior to election day and, discouraged by the long lines and wait times, walked away without casting a vote. D. Ct. Op. 17 (c iting voter declarations). Those who stayed in line faced a discernible risk of becoming

8 See Michael Barthel and Galen Stocking, Older people account for large shares of poll workers and voters in U.S. general elections , P EW R ESEARCH C ENTER : F ACT T ANK, N EWS IN THE N UMBERS (April 6, 2020), https://www.pewresearch.org/fact-t ank /2020/04/06/ older-people-account-for-large-shares-of-poll-workers-and-voters-in-u-s-general-elections/; Laurel White, ‘It’s Madness.’ Wisconsin’s election amid coronavirus sparks anger , NPR (April 6, 2020), https://www.npr.org/2020/04/06 /827122852/it-s-madness-wisconsin-s- election-amid-coronavirus-sparksanger.

9 See

, e.g. , Astead W. Herndon and Alexander Burns, Voting in Wisconsin During a Pandemic: Lines, Masks and Plenty of Fear , N EW Y ORK T IMES (April 7, 2020, updated May 12, 2020) (“The scenes that unfolded in Wisconsin showed an electoral system stretched to the breaking point by the samepublic health catastrophe that has killed thousands and brought the country’s economic and social patterns to a virtual standstill in recent weeks.”); Benjamin Swasey & Alana Wise, Wisconsin vote ends as Trump blames governor for long lines , NPR (April 7, 2020), https://www.npr.org/2020/04/07/82883515 3/long-lines-masks -and-plexiglass-barriers-greet-wisconsin-voters-at-polls.Nos. 20-2835 & 20-2844 19

infected. Although the evidence onthis point is mixed, public health officials determined that 71 individuals contracted Covid-19 after voting in-person or working at the polls on April 7 10 ; one analysis extrapolates from the available data to estimate that a ten percent increase in in-person voters per polling location is associated with an eighteen percent increase in Covid-19 cases two to three weeks later. 11The district court, presented with largely undisputed evidence that (1) the demand for absentee ballots in the forthcoming general election in November will be even greaterthan it was in April (as many as 2 million absentee ballot requests are anticipated), (2) recent cutbacks at the U.S. Postal Service and the resulting delays in mail delivery will present an even greater obstacle to registering and voting by mail than it did in the spring, and (3) persistent concerns about a shortage of poll workers on elec tion day again raise the specter of long lines to vote in person, ordered a set of five limited modifications to Wisconsin elec tion rules aimed at compensating for these conditions and ensuring, consistent with public health advice and voters’ ob vious preference for absentee voting, that voters who wish to vote by mail may do so. The two most significant of these conditions are comparable to

10 See David Wahlberg, 71 people who went to the polls on April 7 got Covid19; tie to election uncertain , W IS

. S TATE J. (May 16, 2020), https://madison.com/wsj/news/local /health-med-fit/71 -people-who-went-to-thepolls-on-april-7-got-covid-19-tie-to /article_ef5ab183-8e29-579a-a52b1de069c320c7.html.

11 Chad Cotti, Ph.D., et al. , The Relationship between In-Person Voting and COVID-19: Evidence from the Wisconsin Primary , Nat’l Bureau of Economic Research, Working Paper No. 27187 (May 2020, revised October 2020), available at https:// www.nber.org/papers/w27187.20 Nos. 20-2835 & 20-2844

those sustained by this court, as modified in one respect by the Supreme Court, for the April election. None are opposedhere by the Wisconsin Executive, which is charged with administering the election. See Repub. Nat’l Com. v. Common Cause Rhode Island , — S. Ct. —, 2020 WL 4680151, at *1 (U.S. Aug. 13, 2020) (noting, inter alia , in denying stay of judicially ordered modifications to state election law, that “here the state election officials support the challenged decree ...”). To the extent these modification s intrude modestly upon theState’s ability to establish its own rules for conducting elections, they are more than just ified by the present pandemic and the unacceptable risks that in-person voting presents to the citizens of Wisconsin.The Legislature challenges Judge Conley’s exercise of discretion in ordering these modifications as if the Covid-19 pandemic presented a quotidian prob lem in an otherwise routineelection, where the options for voting in-person might represent an entirely adequate alternative to voting by mail. The State’s experience with the Apr il election and the current state of the pandemic in Wisconsin de monstrate the fallacy in this premise.As I write this dissent, new infections are surging in Wisconsin and threatening to over whelm the State’s hospitals. Judge Conley noted that in the weeks prior to his decision, new infections had doubled from 1,000 to 2,000 per day. D. Ct. Op. 20. As of Tuesday, October 6, a seven-day average of 2,346 new cases of Covid-19 was reported. 12 The Governor

12 Wis. Dep’t of Health Servs., COVID-19: Wisconsin Cases (as of October 6, 2020), https://www.dhs. wisconsin.gov/covid-19/ca ses.htm#confirmed.Nos. 20-2835 & 20-2844 21

has declared a public health emergency. 13 A draft report from the White House Coronavirus Task Force dated Monday of last week described a “rapid worsening of the epidemic” in Wisconsin and placed the Stat e in the “red zone” for Covid19 cases, with the third-highest number of such cases per 100,000 population in the country and seventh-highest test positivity rate. Nearly half of all Wisconsin counties now have high levels of community transmission. Coronavirus Task Force, State Report—Wisconsin, at 1 (Sept. 27, 2020). 14 Hospitalization rates are at record highs in the State, with facilities in northeast Wisconsin approaching capacity due to the surge in Covid-19 cases 15 ; the State is now proceeding with plans to open a field hospital to address the shortage of hospital beds. 16 Against this worsening backdrop, the district court credited

13 Executive Order No. 90, Office of Wisconsin Governor (Sept. 22, 2020),available at https://evers.wi.gov/Pages/Newsroom/Executive-Orders.aspx.

14 Available at W ASHINGTON P OST website, https:// www.washingtonpost.com/context/white-house-co ronavirus-task-force-report-warnsof-high-wisconsin-covid-19-spread-in-wisconsin/e5f16345-fcb4-4524- 975e-8011379ef0da/.

15 Mary Spicuzza, et al., Some hospitals forced to wait-list or transfer patients as Wisconsin’s coronavirus surge continues , M ILWAUKEE J OURNAL S ENTINEL (Sept. 30, 2020), https:// www.jsonli ne.com/story/news/2020/09/30/wisconsin-hospitals-wait-list-patients-covid-19-surge-coronavirus-greenbay-fox-valley-wausau/3578202001/.

16 Mary Spicuzza and Molly Beck, Wisconsin to open field hospital at State Fair Park on October 14 as surge in coronavirus patients continues in Fox Valley, Green Bay, M ILWAUKEE J OURNAL S ENTINEL (October 7, 2020), https://www.jsonline.com/ story/news /local/wisconsin/2020/10/07/wisconsin-preparing-open-alternate-care-facility-state-fair-park-state-continues-face-surge-covid-1/5909769002/.22 Nos. 20-2835 & 20-2844

the opinion of a nationally recogn ized expert in public health surveillance, who opined that “[t] here is a significant risk to human health associated with in-person voting during theCOVID-19 pandemic[;] [t]here will almost certainly be a significant risk of contracting and transmitting COVID-19 in Wisconsin on and around November 3, 2020[;] [t]he risk of contracting or transmitting CO VID-19 will deter a substantial portion of Wisconsinites from vo ting in person on November3, 2020[;] and [i]ncreasing the ease and availability of absentee-ballot voting options is critical to protecting public health during the November 3, 2020 election.” D. Ct. Op. 23; Expert Report of Patrick Remington, M.D. at 1 (R. 44 in Case No. 3:20- cv-00459-wmc).

Presented with the evidence as to what occurred in April and what is happening now with respect to the pandemic, Judge Conley reasonably concluded that (1) a substantial number of eligible Wisconsin vo ters will not meet the October 14 deadline to register online or by mail, leaving them with only in-person options to register, (2) of the 1.8 to 2 million registered voters who are expected to timely request absentee ballots (D. Ct. Op. 20, 47), as many as 100,000 will not be able to return those ballots by electi on day through no fault of theirown (D. Ct. Op. 51), and (3) when faced with the risks associated with registering or voting in-person, and potentially having to wait in line for hours in order to do so, some number of voters will deem the risk too great. These conclusions explain why he ordered modest adjustments to Wisconsin’s election rules in order to minimize that possibility. Of all of us, Judge Conley is the one judge who heard the evidence first-hand and is closest to the ground in Wisconsin. We owe deference to his judgment. He considered theNos. 20-2835 & 20-2844 23

Anderson-Burdick factors for constitutional challenges to state election rules. Consistent with Luft v. Evers , 963 F.3d 665, 671 (7th Cir. 2020), he considered th e Wisconsin election rules in their totality in assessing the burdens that those rules, under the present circumstances, impose on the right to vote. He considered Purcell’s admonition that judicial orders modifying election rules can result in voter confusion and an incentive not to vote, especially as an election draws closer. 549 U.S. at 4–5, 127 S. Ct. at 7. He considered this court’s prior ruling in April granting a stay as to all but two of the modifications ordered for the April election. Bostelmann , 2020 WL 3619499. And he considered the Supreme Court’s ruling, issued oneday prior to the April election, which both chastised the district court for altering Wisconsin’s election rules within daysof the election but also modified the extension of the ballotreceipt deadline to require that mailed absentee ballots be delivered or postmarked on or be fore election day and accepted the deadline change as modified. Republican Nat’l Com. , 140 S. Ct. at 1207, 1208.

In view of the fact that this court allowed extensions of the ballot-request deadline and ballot-receipt deadline to be implemented in the April election, it is not clear to me why the majority has decided to stay comparable modifications (effectively nullifying them) fo r the November election. Yes, the Covid-19 virus is no longer a new menace and Wisconsin election officials have now had the experience of conducting two elections during the pandemic. But the Wisconsin election code remains one designed primarily for in-person voting, whereas the surge of Co vid-19 cases in Wisconsin has only increased the risks associ ated with in-person voting since April. The logistical demands posed by absentee voting will if anything be greater for the November general election,24 Nos. 20-2835 & 20-2844

with possibly a million additional absentee ballots to be sent and returned by mail; and with the recently-discovered cutbacks in Postal Service capacity, 17there is even greater reason to be concerned about the ability of voters to both register and vote by mail. Regi stering and voting in person remain as alternatives, but no legislator, no election official, and certainly no judge can assure Wisconsin voters that there is no risk associated with registering and/or voting in person as infection rates spike in thei r communities, especially in high-population urban areas. Election officials may hope that more polling places will be open in November than April, but they cannot guarantee that enough poll workers will show up on election day to avoid the sort s of long voter lines and waits that made headlines then. Nor, by the way, can anyone assure voters that they will not be wait ing in line next to one or more unmasked voters, or one who is contagious with the coronavirus. Indeed, a lawsuit challenging the Governor’s mask mandate is presently pending in the Wisconsin courts. 18

17 See

, e.g. , Jacob Bogage, et al.

, DeJoy pushes back on criticism of changes to Postal Service, says he won’t restore sorting machines , W ASHINGTON P OST(Aug. 24, 2020), https://www.washingtonpost.com/politics/2020/08/24/dejoy-testimony-usps-house /; Elise Viebeck and Jacob Bogage, Federal judge temporarily blocks US PS operational changes amid concerns about mail slowdowns, election , W ASHINGTON P OST (Sept. 17, 2020), https://www.washingtonpost.com/polit ics/federal-judg e-iss-ues-temporary-injunction-against- usps-operational-changes-amid-concerns-aboutmail-slowdowns/2020/09/ 17/34fb85a0-f91e-11ea-a275- 1a2c2d36e1f1_story.html.

18 See Scott Bauer, Conservative law firm seeks to end Wisconsin mask order , AP
N EWS (Sept. 28, 2020), https://apnews.com/article/virus-outbreak-healthwisconsin-public-health-270d663b9411b33a17fc45fdf8ad2720; Molly Beck, GOP leaders go to court in support of effort to strike down Tony Evers’ mask mandate , W ISCONSIN J OURNAL S ENTINEL (Oct. 2, 2020),Nos. 20-2835 & 20-2844 25

Having in mind the shortfalls with the April election and the current public health crisis posed by the pandemic, it is not unreasonable for Wisconsin voters to view the option of in-person registration and voting as a form of Russian roulette. For eligible voters who are unable to register by mail by the statutory deadline (and fo r the April election, there were more than 57,000 people who registered after that deadline, thanks to the district court’s extension of that deadline, D. Ct. Op. 17) and for voters who timely request an absenteeballot but who either do not receive it by election day or receive it too late to return it by election day (more than 120,000 absentee ballots were not returned by election, see D. Ct. Op.15), the risks associated with in-person registration and voting amount to a concrete and unacceptable, and in my view, severe, restriction on the right to vote. See Luft , 963 F.3d at 672 (citing Burdick , 504 U.S. at 434, 112 S. Ct. at 2063; Anderson , 460 U.S. at 788, 103 S. Ct. at 1569–70; Acevedo v. Cook Cnty. Officers Electoral Bd. , 925 F.3d 944 (7th Cir. 2019)). This is especially true of individuals who are 65 ye ars of age or older (more than 900,000 people in Wisconsin 19 ), obese (some 40 percent of Wisconsin adults 20 ), or suffer from chronic health conditions that render them especially vulnerable to complications from a

https://www.jsonline.com/story/news /politics/2020/10/02/ gop-goescourt-support-effort-strike-down -mask-mandate/ 3592966001/.

19 See Wis. Dep’t of Health Servs., Demographics of Aging in Wisconsin , Am. Community Survey Statewide & Cnty. Aging Profiles, 2014-18, State of Wis. Profile of Persons Ages 65 & Older (Jan. 20, 2020), https://www.dhs.wisconsin.go v/aging/demographics.htm.

20 See Tala Salem, Wisconsin obesity rate higher than previous estimates

, U.S.
N EWS & W ORLD R EPORT (June 11, 2018), https://www.usnews.com/news/health-care-news/articles/ 2018-06-11/wisconsin-obesityrate-higher-than-previous-estimates.26 Nos. 20-2835 & 20-2844

Covid-19 infection (some 45 percent of all adults nationwide 21 ).

Of course it is true that vo ters have the ability to plan ahead, register early if need be, and request absentee ballotsearly in order to ensure that they have adequate time to complete and return their ballots prior to election day. 22 But votersmay also reasonably rely on the State’s own deadlines for advance registration and requesti ng an absentee ballot as a guide to the amount of time necessary for their registrations to be processed and their ballots to be issued, completed, and returned. Voters do not run the State’s election apparatus or the U.S. Postal Service; they ha ve no special insight into how quickly their timely requests to register and/or vote by mail will be processed by election officials and how quickly the Postal Service will deliver their ba llots. It is not reasonable to insist that voters act more quic kly than state deadlines require them to do in order to ensure th at either the State or the Postal Service does not inadvertentl y disenfranchise them because they are overwhelmed with th e volume of mail-in registrations and absentee ballots.

21 See Mary L. Adams, et al.

, Population-based estimates of chronic conditions affecting risk for complications from coronavirus disease, United States , 26 E MERGING I NFECTIOUS D ISEASES J. No. 8 (August 2020), https://wwwnc.cdc.gov/eid/article/26/8/20-0679 _article.

22 Completing an absentee ballot is not a matter of simply filling it out.Wisconsin requires absentee voters to have their ballots signed by a witness. See Wis. Stat. § 6.87(4)(b). Some 600,000 Wisconsin voters live alone (D. Ct. Op. 21), which means they must seek out someone outside of their household to sign their ballots. Duri ng a time of surging Covid-19 infections, that is not necessarily a simple task.Nos. 20-2835 & 20-2844 27

It is also true that voters who receive their ballots just prior to the election have the option of delivering their ballots to adropbox or to the polls on election day. But significant numbers of Wisconsin voters lack a driver’s license (including roughly half of African American and Hispanic residents) and therefore cannot drive themselv es to a poll or dropbox. 23 Relying on public transportation, a taxi, a ride-sharing service, or a lift from a neighbor to make the trip presents difficulties and risks of its own, which cannot be justified if the voter has timely complied with existing deadlines and yet cannot meet existing deadlines through no fault of her own. I recognize that the district court’s decision to order modifications to Wisconsin’s election practices represents an intrusion into the domain of state government, but in my view it is a necessary one. We are seven months-plus into this pandemic. The Legislature has had ample time to make modifications of its own to the election code and has declined to do so. The Wisconsin Elections Commission, divided 3-3 along party lines, concluded that it la cks the authority to order such modifications. This leaves vote rs at the mercy of overworked state and local election officials, a hamstrung Postal Service, and a merciless virus. What we must ask, as Judge Conley did, is whether Wisconsin’s election rules, which were notdrafted for pandemic conditions, effectively restrict a Wisconsin citizen’s right to vote under current conditions. The answer, I submit, is yes. Based on the State’s experience with the April election, we know it is likely that tens of thousands of

23 See John Pawasarat, The Driver License Status of the Voting Age Population in Wisconsin , Employment and Training Institute, Univ. of Wis.-Milwaukee (June 2005), availa ble at https://dc.uwm.edu/eti_pubs/68/.28 Nos. 20-2835 & 20-2844

voters will not meet the October 14 deadline to register onlineor by mail, especially if they are relying on the mail to complete that process. We know that tens of thousands of voters likely will not be able to return their ballots by mail before election day, through no fault of their own. We know that registering or voting in person, es pecially on election day, will expose some number of voters to a concrete risk of Covid-19infection. Collectively, these conditions pose a real and substantial impediment to the right to vote. Whether that obstacle is viewed as modest or severe, and whether viewed through the lens of rational basis review or strict scrutiny, it is unacceptable. The State itself purports to want people to vote absentee, and yet has done nothing to alter its election rules to make the necessary accommodation s to ensure that voters are not needlessly disenfranchised by the overwhelming shift from in-person to absentee voting.I conclude with a just a few words about each of the individual modifications that the di strict court ordered. Individually and collectively, these modifications, in my view, represent a reasonable, proportional response to current conditions aimed at preserving the right to vote. Of these, the most important, and in my view, the most essential of these modifications is the six-day extension of thedeadline for the return of absentee ballots by mail to November 9, 2020, so long as the ballots are postmarked on or before election day. Of the five modifi cations ordered by the district court, none is more directly aimed at protecting the right to vote, in that it seeks to ensure that ballots that have been timely cast by voters will be counted. The circumstances that warranted a similar extension in April are even more serious now: the Covid-19 pandemic makes it more imperative thatNos. 20-2835 & 20-2844 29

as many voters as possible vote by absentee ballot; the demand for absentee ballots is virtually certain to be evengreater (record-shattering) than it was in April, placing unprecedented demands on election officials and the U.S. Postal Service alike; and cutbacks implemented by the U.S. Postal Service this summer (not all of which have been suspended or reversed) threaten recurrent if not worse delays in the delivery and return of absentee ballots. The fact that some 80,000 ballots were received by mail after election day in April is all the proof necessary that an extension of the receipt deadline is vital as a means of protecting the voting rights of tens of thousands of Wisconsin voters—voters who, it cannot be said too often, will timely request and complete absentee ballots but are unable to return them by the election day deadline by no mistake or omission of their own. Against this, all that the Legislature offers is a wish to have the results of the election conclusively determined on election night. But weighed against the constitutional right to vote, this is thin gruel. The one-week extension of the deadline to register online or by mail is reasonable in te rms of both the worsening pandemic and the slowdown in ma il service. As Judge Conley pointed out, Wisconsin voters are in the habit of using the State’s same-day registration option to register or update their registration on election day. Only as Covid-19 infectionssurge in Wisconsin may voters now realize that in-person registration on election day poses unique risks, particularly if lines at the polls turn out to be as long as they were in April. At the same time, voters seekin g to register by mail may run into the same problems that absentee voters encountered in April with delays in the U.S. Mail. A brief extension of the advance registration deadline is an appropriate response, and the Wisconsin Election Commi ssion conceded that the30 Nos. 20-2835 & 20-2844

extension would still leave adequate time for election officials to update pollbooks with registration information in time for election day. The directive to add language to the MyVote and WisVote websites (along with any releva nt printed materials) regarding the “indefinitely confined” ex ception to the photo i.d. requirement is an extremely limit ed order aimed at eliminatingvoter confusion. Wisconsin law requires voters to present appropriate photographic identificati on in order to obtain a ballot, whether in-person or by mail. There is an exception to this requirement for a voter who is “indefinitely confined” due toage, infirmity, or disability; the signature of the voter’s witness will be deemed sufficient in lieu of proof of i.d. The Commission’s March 2020 guidance on this exception makes clear that a voter need not be perman ently or totally disabled and wholly unable to leave one’s residence in order to qualify forthis exception, but this guidance is not easily available to voters and the district court foun d that there was a substantialrisk of voter confusion as to the scope of the exception without further guidance. This was a reasonable order. The order to permit replacement absentee ballots to be transmitted electronically to domestic civilian voters who have not received their ballots by mail in the penultimateweek prior to the election (October 22–29) addresses a concrete problem that emerged in the April election: not all absentee ballots will reach voters in time for the election even if they have been timely requested. Recall that tens of thousands of ballots were still being mailed out within a few days of the election, making it impossible for voters to return them by mail (if they received them at a ll) by election day. Wisconsin law prohibits election offici als from sending ballots byNos. 20-2835 & 20-2844 31

electronic means to anyone bu t military or overseas voters. That restriction was modified by judicial order in 2016, see One Wisconsin Inst., Inc. v. Thomsen , 198 F. Supp. 3d 896, 946– 48 (W.D. Wis. 2016), and until our June 2020 decision in Luft reversing that modification, elec tion officials were making absentee ballots available online or by fax as necessary to domestic civilian voters. Restoring that practice for a limited window of time in advance of the November election makes eminent sense as a means of prot ecting the right to vote by voters who have timely requested an absentee ballot but have not received it in the mail as the election approaches. Finally, in view of the severe shortages of poll workers that hobbled the April election with numerous poll closings and massive voting delays, the or der that local officials be allowed to employ poll workers who are not electors in thecounty where they will serve is both necessary and reasonable. Adequate staffing of the polls is essential to minimizing voter wait times and, in turn, public health risks. Allowing poll workers (be they civilians or National Guard reservists) to work outside of their own coun ties is a modest and entirely reasonable means of achieving thatend, one that poses no risk to the integrity of the election . The Legislature has articulated no reason why this accommodati on is either unnecessary or inappropriate. Given the great care that the district court took in issuingits preliminary injunction and the ample factual record supporting its decision, I am dismay ed to be dissenting. It is a virtual certainty that current conditions will result in manyvoters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present32 Nos. 20-2835 & 20-2844

circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legisl ature that sits on its handswhile a pandemic rages. The district court ordered five modest changes to Wisconsin’s election rules aimed at minimizing the number of voters who may be denied the right to vote. Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices.

Good luck and G-d bless, Wisconsin. You are going to need it.